State Of Idaho v. Pokorney

• Decision Date: 02 July 2010
• Docket Number: No. 34945.,34945.
• Citation: 149 Idaho 459,235 P.3d 409
• Parties: STATE of Idaho, Plaintiff-Respondent,v.Richard David POKORNEY, Defendant-Appellant.
• Court: Idaho Court of Appeals

149 Idaho 459

235 P.3d 409

STATE of Idaho, Plaintiff-Respondent,v.Richard David POKORNEY, Defendant-Appellant.

No. 34945.

Court of Appeals of Idaho.

May 27, 2010.

Rehearing Denied July 2, 2010.

COPYRIGHT MATERIAL OMITTED

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

GRATTON, Judge.

Richard David Pokorney appeals his judgment of conviction on five counts of lewd conduct with a minor under sixteen. Idaho Code § 18-1508. He alleges the trial court erred in admitting evidence under Idaho Rule of Evidence 404(b). For the reasons set forth below, we vacate the judgment of conviction and remand.

I.FACTUAL AND PROCEDURAL BACKGROUND

Pokorney and his wife, L.G., have five sons whose ages at the time of trial were: J.G., age twenty-three; R.D.P., age seventeen; W.P., age twelve; R.P., age nine; and J.P., age five. Stemming from the allegations of four of his five sons, Pokorney was charged with seven counts of lewd conduct with a minor under sixteen. R.D.P. made no allegation of misconduct. The State's case included direct testimony of lewd conduct from J.G., W.P., and R.P. The youngest son, J.P., took the stand but did not testify to any misconduct. ¹

Prior to trial, the State notified Pokorney that it intended to present evidence of a prior bad act pursuant to I.R.E. 404(b). Pokorney had been convicted in Montana in 1984 of sexual conduct with a minor, involving B.W. as a victim. The evidence proposed by the State included a letter written by Pokorney, while he was in jail on charges of domestic violence, to his son R.D.P. In the letter, Pokorney denied the lewd conduct allegations in this case and, among other things, attempted to explain Pokorney's crime against B.W. The evidence proposed by the State also included testimony from B.W. Over objection from Pokorney, the district court allowed presentation of the evidence pursuant to Rule 404(b). In its case-in-chief, the State introduced portions of the letter and the testimony of B.W.

The jury convicted Pokorney of five counts of lewd conduct against J.G., W.P., and R.P., and the district court imposed unified sentences of life with thirty years determinate on each count to run concurrently. Pokorney appeals.

II.DISCUSSION

Pokorney argues the letter and associated testimony of B.W. were irrelevant for any proper purpose under Rule 404(b) and even if they were relevant, the probative value was substantially outweighed by the unfair prejudicial effect. Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App.1987). However, such evidence may be admissible for a purpose other than that prohibited by Rule 404(b). State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). In determining the admissibility of evidence of prior bad acts, we utilize a two-tiered analysis. The first tier involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue concerning the crime charged, other than propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). We defer to a trial court's factual findings if supported by substantial and competent evidence in the record. State v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997). In this case, Pokorney does not challenge the existence of the prior bad act as an established fact. Therefore, we address only the second part of the first tier-the relevancy determination. Whether evidence is relevant is an issue of law. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993). When considering admission of evidence of prior bad acts, we exercise free review of the trial court's relevancy determination. Id. The second tier in the analysis is the determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. I.R.E. 403; Grist, 147 Idaho at 52, 205 P.3d at 1188. This decision is committed to the discretion of the trial judge, and we review for an abuse of discretion. Id. Finally, error in the admission of evidence is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct.App.1983).

A. Relevance

The district court determined that the proposed evidence was relevant and that its prejudicial effect did not substantially outweigh its probative value, stating:

Okay. As far as the prior conviction coming in, the testimony of the prior acts of molestation, they are admissible. They will be allowed to be presented in the state's case in chief along with the prior conviction. I base that on State v. Kremer, the Field case that was cited and appropriately cited by the defense, dealt primarily with an individual who talked a great deal about sexual acts; but, again, there was no evidence of acts being perpetrated nor was there any similarity of gender, age, conduct between the prior bad act and the alleged crimes. In this case, the age group is similar in age. The circumstances are similar. It's more in line with State v. Kremer, K-R-E-M-E-R, 144 Idaho 286 [160 P.3d 443 (2007) ].

They will be admitted upon proper foundation, obviously, as well as the letters from the defendant that were attached to your motion, again, upon proper foundation.

The court in weighing the prior bad acts with the provisions of Idaho Rule 403-obviously, these are prejudicial. The question is: Is the probative value outweighed by the prejudicial effect? The court will find that the probative value-that being the defendant's prior conduct towards similar age groups, males-is highly probative of a-when we look at 404 subpart (b), “plan,” “motive,” “preparation,” several of those factors outlined in that rule, clearly, it's highly, highly probative of that. And the court will find that the probative value is not outweighed by the prejudicial effect. So, the state can present that evidence in their case in chief.

The district court admitted the evidence because of the similarity of gender, age and conduct between the prior bad act and the alleged crimes. At the time of its decision, the district court did not have the benefit of our Supreme Court's opinions in Grist and State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010).

Courts are to apply the same standard in sexual abuse cases as is applied in other cases for allowing evidence of other bad acts under Rule 404(b). Grist, 147 Idaho at 51, 205 P.3d at 1187. Evidence of other misconduct may not be admitted pursuant to Rule 404(b) when its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior. Grist, 147 Idaho at 54, 205 P.3d at 1190. Idaho Rule of Evidence 404(b) allows evidence of other crimes for purposes “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” “At a minimum, there must be evidence of a common scheme or plan beyond the bare fact that sexual misconduct has occurred with children in the past.” Johnson, 148 Idaho at 668, 227 P.3d at 922. The events must be linked by common characteristics that go beyond merely showing a criminal propensity. Id. In Johnson, the trial court admitted evidence of prior sexual abuse because of similarities in age, gender, and conduct. Id. at 669, 227 P.3d at 923. The Johnson Court held that the similarities merely demonstrated a propensity and did not rise to the level of a common scheme or plan. Id.

As in Johnson, admission in this case of evidence of prior misconduct based upon similarity of circumstances, without more, was erroneous. Indeed, the State argues for admissibility on the separate ground that the letter and associated testimony of B.W. was relevant to show that Pokorney was manipulating his son, a potential accuser and/or witness, which demonstrated consciousness of guilt. Where a ruling in a criminal case is correct, though based upon an incorrect reason, it may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App.1984).

Rule 404(b) allows evidence of other acts if admitted for the purpose of showing knowledge or consciousness of guilt. State v. Sheahan, 139 Idaho 267, 279, 77 P.3d 956, 968 (2003). Consciousness of guilt has been found in a variety of circumstances. Evidence of flight, escape, or failure to appear on the part of a defendant is often identified as relevant to demonstrate consciousness of guilt. State v. Rossignol, 147 Idaho 818, 822, 215 P.3d 538, 542 (Ct.App.2009) (allowed evidence that defendant failed to appear at a hearing to increase bond and left the jurisdiction); State v. Moore, 131 Idaho 814, 819-20, 965 P.2d 174, 179-80 (1998) (admitted evidence that defendant left Idaho for his home in Oregon to avoid a scheduled interview from an officer investigating lewd conduct); State v. Friedley, 122 Idaho 321, 322-23, 834 P.2d 323, 324-25 (Ct.App.1992) (allowed stipulation that defendant failed to appear at arraignment and at the initially scheduled trial on drug charges).

Evidence of a defendant's efforts to influence or affect evidence, such as intimidating a witness, offering to compensate a witness, and fabrication, destruction or concealment of evidence may be relevant to demonstrate consciousness of guilt.² In Sheahan, officers handcuffed the defendant and placed bags over his hands to preserve evidence of a shooting. Sheahan's attempts to remove the bags and thus destroy evidence implicated consciousness of guilt. Sheahan, 139 Idaho at 279, 77 P.3d at 968. In State v. Rolfe, 92 Idaho 467, 470, ...